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Climate Change Litigation Comes to Canada

December 14, 2018

Written by Michael P. Theroux, Laura M. Gill and Leanne Desbarats

Introduction

On November 27, 2018, a class action lawsuit was filed in Québec seeking relief against the federal government on the basis of its alleged inaction on climate change. The action, commenced by a group called ENvironnement JEUnesse, purports to represent all Québec citizens aged 35 years and under. There has been a flurry of climate change lawsuits in the United States in recent years, including nine youth-led class actions that are similar to the Québec claim. However, there have been no successful climate change suits in the United States to date. The Québec claim may signal that the American trend of climate change litigation is spilling over into Canada.

The Québec Claim

The Québec claim seeks a declaration that the federal government's behaviour has infringed the rights of youths under the Canadian Charter Rights and Freedoms and the Québec Charter of Rights and Freedoms. In particular, the claim alleges that the government has breached section 7 (right to life, integrity and security of the person) and section 15 (right to equality) of the Canadian Charter and sections 1 (right to life, integrity and security of the person), section 10 (right to equality) and section 46.1 (right to live in a healthful environment in which biodiversity is preserved) of the Québec Charter. The claim also seeks an order for punitive damages.

The claim is in the preliminary stages. In order for it to proceed, the claim must be certified by the Québec Superior Court. It is unclear at this point in time whether the claim will be successful.

Other Climate Change Related Litigation in Canada

There is only one other existing class action in Canada seeking damages as a result of climate change. Ontario Burgess v Ontario Minister of Natural Resources and Forestry, Court File No. 16-1325CP, is a class action commenced by a group of property owners seeking damages from the Ontario Ministry of Natural Resources alleging that the Ministry failed to properly adapt to climate change and prevent flooding which caused property damage to the plaintiffs' homes. The claim was filed in 2016 but the class has not been certified.

American Climate Change Litigation

On the other hand, there have been a wide range of lawsuits commenced in the United States relating to climate change, including:

suits advanced by states and municipalities against corporations seeking various remedies and damages suffered as a result of climate change (see for example: City of New York v BP et al, Case No 18 Civ 182 (SD NY Jan 9, 2018));

Of particular relevance to the Québec claim is a series of U.S. lawsuits that have been commenced by groups purporting to represent youth in America against federal and state governments seeking damages as a result of government inaction on climate change. These claims are often referred to as the "Childrens' Lawsuits".

The Childrens' Lawsuits all allege that a government breached the "public trust doctrine". The public trust doctrine is a principle that the government holds some resources in trust for public use and enjoyment. The public, as beneficiaries, can bring claims against the government on the basis that it has breached obligations to the public in the management of those resources. One of the Childrens' Lawsuits, Juliana v US, has received recent attention because the Trump administration applied to stay the trial of the action which was set to begin in October of 2018 in Oregon. The case is currently stayed pending interlocutory appeals, and it remains to be seen whether it will continue.

Implications

The public trust doctrine is not a recognized cause of action in Canada, although some commentators have suggested it could develop as a type of fiduciary obligation owing by the Canadian government to citizens. While the Québec claim is still in its preliminary stages, and it is too early to comment on its probability of success, it may signal that Canada will follow the American trend and that there will be an emergence of climate change related claims in the future.